Arizona bill would make online porn viewers pay for border wall with Mexico.

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An Arizona state lawmaker has proposed a $20 fee on people who want to view online pornography in order to raise money for building a border wall between Arizona and Mexico.

Arizona House Bill 2444, proposed last week by State Rep. Gail Griffin (R-Hereford), would require makers and distributors of Internet-connected devices to ship such devices with blocking software "that renders a website that displays obscene material inaccessible by default." Under the bill, any Internet user who wants to deactivate the blocking software would have to pay "a onetime deactivation fee of at least $20 to the Arizona Commerce Authority."

The money would be used to establish what the bill calls the "John McCain Human Trafficking and Child Exploitation Prevention Fund." That fund would "provide grants to government agencies and private entities that work to uphold community standards of decency for the purpose of strengthening families and developing, expanding or strengthening programs for victims of sex offenses."

To accomplish that goal, the bill provides a list of 10 types of projects that could be funded by the porn fee. First on the list is "build a border wall between Mexico and this state or fund border security." The proposal comes as President Trump continues his push for a border wall.

Further Reading

The Arizona bill's porn-blocking requirements are "pretty clearly unconstitutional," Mike Stabile, a spokesman for an adult entertainment industry group called the Free Speech Coalition, told the Arizona Mirror. While the bill's anti-porn features have been proposed in other states, Stabile said that "the border wall twist is new."

Aside from the border wall, the proposed fund would provide grants for physical and mental health services, housing and employment for victims of sex offenses, compensation for crime victims, shelters, family counseling and rehabilitation, and for assisting law enforcement. Grants could also be given to organizations that "prevent and protect victims of human trafficking, domestic violence, prostitution, divorce, child abuse and sexual assault."

Griffin's proposal is apparently based on a model bill that has been proposed in one form or another in most state legislatures across the US. The Arizona bill and the model bill are both called the "Human Trafficking and Child Exploitation Prevention Act."

Potential First Amendment violation

We wrote about a similar bill proposing a $20 porn fee in Rhode Island in March 2018, though that bill imposed the blocking requirement on Internet service providers instead of electronics distributors in general and did not make any mention of a border wall.

Like the Rhode Island bill, the Arizona proposal could violate the First Amendment. As we wrote in our story on the Rhode Island bill:

Broad requirements to block sexual content, such as the ones proposed in Rhode Island, could violate the First Amendment's free speech protections. For example, the Reno v. American Civil Liberties UnionSupreme Court decision said that the "indecent transmission" and "patently offensive display" provisions of the 1996 Communications Decency Act violated the First Amendment. In that case, the vagueness and breadth of the law resulted in suppression of "a large amount of speech that adults have a constitutional right to send and receive," the court said.

Parts of the Arizona bill could certainly be described as vague and broad. It says that online content is obscene and must be blocked if "the average individual applying contemporary community standards, when considered or taken as a whole, would find appeals to the prurient interest," if it "depicts or describes sexual activity in a patently offensive way by audio or visual representations," and if it "lacks serious literary, artistic, political or scientific value."

The bill would apply broadly to many types of device manufacturers and distributors. The bill defines "distributor" as "a person that is in the business of manufacturing, selling, offering for sale, leasing or distributing a product in this state that makes content accessible on the Internet." The proposed law would thus apply both to the makers of such devices and the businesses that sell them directly to consumers.

Aside from legal questions, this would make accessing "obscene" sites complicated for consumers. For each Internet-connected device a consumer owns, the consumer might have to ask a different distributor or manufacturer to deactivate blocking software. Any distributor that "share[s] the method, source code or other operating instructions for deactivating a filter" would be guilty of a misdemeanor. Distributors would also be guilty of misdemeanors if they "knowingly violate" the prohibition on selling products without blocking software.

Consumers might also have to pay extra fees to each distributor, in addition to the $20 fee to the Arizona government. That's because the bill says "a distributor may impose and retain an additional charge to deactivate the blocking software."

Distributors would have to "make reasonable and ongoing efforts to ensure that the blocking software functions properly" and establish a reporting mechanism for people to report websites that should be blocked or websites that have been wrongfully blocked. If distributors don't unblock wrongfully blocked sites, people could seek court orders to get the websites unblocked.

Revenge porn and prostitution also targeted

In addition to blocking obscene content in general, the Arizona bill's proposed blocking software would have to block access to websites that display revenge pornography by default or that facilitate prostitution by default. The software would also have to block content that violates an Arizona law prohibiting sexual exploitation of children and block websites that facilitate violations of laws against sex trafficking and trafficking for the purpose of forced labor. Distributors would not be required to block social media sites that make reasonable efforts to remove obscene content.

The bill says the state attorney general or "any person" would be able to file civil actions against distributors that fail to block specific websites and could "seek damages of up to $500 for each website displaying obscene material, or for each accessible website, that was reported but not blocked within a reasonable amount of time." The attorney general or county attorneys would also be allowed to "seek injunctive relief" against distributors that allow access to websites that should be blocked.

We left Griffin messages via email and voicemail today and will update this story if she answers our questions.